SD Tribes on child welfare: We can do it better: But ability to administer foster care has doubters in Indian Country

Juanita Scherich remembers how they cut her hair, how they made her scrub and wash every day, as if a trim and a bath would take the “Indian” out of a 9-year-old child.

Though it was decades ago, Scherich can’t forget how no one in a string of Rapid City foster homes spoke her native language. How none of them prayed to tunkasila, great spirit-father of the Lakota. How no one offered her even a whiff of her tribal culture.

“I lost everything in 2½ years in foster care,” the Indian Child Welfare Act director for the Oglala Sioux Tribe says. “My language, my culture, I had to relearn it all. That wasn’t right.”

Today, she and tribal officials across South Dakota are prepared to change that. With 35 years of federal ICWA legislation on the books and 80 percent of Native children still showing up in white foster homes, the tribes insist they are ready to take over foster care and child protection services, and to keep more of their children on the reservations.

The key to accomplishing that, they say, is directly accessing federal dollars now being funneled through the state.

“If we had direct funding,” Scherich said, “we would see that more of our children are staying with relatives, staying with our own people.”

But how many federal dollars are they talking about? A National Public Radio series that aired in October 2011 suggested the state receives $100 million a year to subsidize its foster care program. The Coalition of Sioux Tribes for Children and Families and the Lakota People’s Law Project cited that number in a report to Congress in January.

But state officials say they have no idea where Sheehan and the tribes get their numbers. The entire fiscal year 2013 budget for the state’s Division of Child Protection Services was $60.6 million, said Department of Social Services spokeswoman Kristin Kellar. Of that, the state received $8.8 million in Title IV-E funds, which are the federal dollars the tribes want to access directly.

“Native Americans represented 57 percent of all children in foster care, so you could estimate $5 million of the federal IV-E dollars supported native children,” Kellar said.

Whatever the amount, there seems to be no dispute about whether tribes actually can run their own programs. Gov. Dennis Daugaard said as much in a letter he sent July 17 to U.S. Health and Human Services Secretary Kathleen Sebelius.

“Recently several tribes have expressed interest in providing child welfare services, including foster care, to their members,” Daugaard wrote. “I want you to know I am fully in support of these efforts, and I ask you to favorably consider the requests of any South Dakota tribe to directly administer child welfare or foster care services to their members.”

At a three-day conference July 8-10 in Rapid City, tribal officials from across the state engaged in serious discussions about trying to form their own tribally run foster care systems without any regulatory or financial involvement from the state. At that time, Sheehan reported that he had been talking to officials in the Department of Interior about that possibility.

Tribes' ability to run program questioned

Some tribal officials worry that it won’t work — and urge leaders to think about more than money. Professional training and a good tribal court system are essential to success.

Sheehan knows of only one tribe in the nation, the Port Gamble S’Klallam tribe in Washington, that has severed state oversight and now has complete control over the welfare of its children.

Late in 2011, the 1,000-member tribe assumed all control of its guardianships, foster care and adoptions.

Danny Sheehan, chief counsel for the Lakota People’s Law Project, a nonprofit that provides expertise to the Lakota about ICWA violations, suspects the amount is at least in the $56 million range.

“Federal money comes in now to the state under various provisions of Title IV of the Social Security Act,” Sheehan said. “Our best estimate is that 56 percent of the children in foster care are Native Americans. So we’re talking about a good percentage of that $56 million.”

In South Dakota, four tribes — Sisseton-Wahpeton, Oglala, Standing Rock and Flandreau — have contracted with the state to access IV-E dollars to help pay for foster care placement, training and some licensing, said Virgena Wieseler, the state’s head of Child Protection Services.

Only guidelines for tribes are federal

In the case of the Oglala, a charter agency called Lakota Oyate Wakanyeja Owicakiyapi, or LOWO, was developed to provide an array of child welfare services, from foster care placement and foster parent training and retention, to family preservation and reunification services.

Though the Oglala’s IV-E dollars are funneled through the state, “we do not create rules and regulations for them to follow,” Wieseler said. “The federal government develops those. When tribes want to access IV-E funding, they are held to the same federal requirements that the state is held to.”

Among those rules are income guidelines. A family’s income determines whether a child needing foster care placement can benefit from IV-E dollars. That’s a federal regulation, she said.

But when it comes to licensing foster homes, or setting guidelines on living conditions for a child in a foster home, “we don’t dictate those numbers to tribes getting IV-E dollars,” Wieseler said.

“We only require that homes have a license, and that they meet safety requirements as far as criminal background checks. Otherwise, the tribes we have IV-E agreements with license their own foster homes and make their own standards.”

Fairness of dividing money in dispute

But not all the tribes are entirely satisfied with the state-tribal collaborations on IV-E. For example, Scherich and Sheehan say the state distribution of IV-E monies to tribes it contracts with ends up providing less dollars for tribal social worker salaries than their state counterparts.

Department of Social Services spokeswoman Kellar disputes that. “Tribes get Title IV-E funding commensurate with their administrative costs verified by time studies,” she said. “The state does not reduce the amount tribes can legitimately claim.”

Still, all those disagreements would go away if the tribes simply accessed IV-E dollars directly themselves, Sheehan said. So he and the Lakota People’s Law Project are working to make that happen.

At a time when the Oglala and Rosebud tribes along with the ACLU were suing the state over the removal of tribal children in Pennington County in neglect cases, Sheehan said he and others with the Lakota People’s Law Project were invited to Washington, D.C., to discuss working on smoldering ICWA issues in South Dakota.

Grants of $300,000 to nine tribes

What they suggested as a way to mitigate problems, Sheehan said, was for the Health and Human Services department to provide $300,000 planning grants to all nine South Dakota tribes to develop their own foster care and child protection programs.

Such grants have been available since 2008, he said, but only 14 applications have been filed nationally. Though a handful have been approved, none has received the planning dollars yet, he said.

“In lieu of the Justice Department having to come in and litigate against DSS in South Dakota, why don’t we try to solve this administratively by having HHS give priority to these planning grants?” Sheehan said. “We’ve been told that Kevin Washburn, the assistant secretary for Indian Affairs in the Interior Department, is willing to intervene, that he has contacted HHS and asked them to stand by to receive each of these applications from each tribe in the state of South Dakota.”

Should they succeed in getting federal dollars directly, Sheehan said his conversations with the tribes have included the possibility of a centralized administrative office near Pierre where commonly administered services could be handled in one place. There could be centralized bookkeeping. There could be some oversight responsibility. The federal government wants to know that its dollars are being spent responsibly, and this would be a way to avoid duplication of efforts, Sheehan said.

Preventing return to abusive homes

At the same time, he said it’s important for the tribes here to avoid what he called “the Spirit Lake phenomenon.” That’s a situation in North Dakota in which the Spirit Lake tribe was invoking ICWA to take custody of abused and neglected children removed from their homes by the state, only to turn those children right back to abusive situations.

“There is a concern that if the tribes take over direct funding, they might be inclined to do the same thing,” Sheehan said. “We have to make clear in applying for planning grants that they’re going to have good-faith programs.

“Part of the obligation of our office is to make sure they do step up and make those hard choices. They’re going to have to have real professionals working in these programs. You can’t have a tribal chairman appoint his brother to be head of a program.”

It sounds reasonable. But even among those working with tribal ICWA and child protection programs, there are doubts that tribes can succeed on their own.

Sisseton-Wahpeton provides example

Though Sisseton-Wahpeton accesses IV-E dollars through a contract with the state and doesn’t have to send any of its foster care children off the reservation, “there is no way we could meet the IV-E requirements on our own,” said Ken Hardy, program manager for Sisseton-Wahpeton Child Protection Program.

The Department of Social Services operates a system called FACIS that allows it to collect case level data required by the federal government and submit it every six months. Hardy said he thinks such systems cost in the millions.

“Each tribe would have to have such a system to communicate with the federal government,” he said. “We could never implement that system to get those IV-E dollars; we couldn’t afford it. You can talk about trying to take it over yourself, but I don’t think a lot of people have any idea what the requirements are.”

Measure of state help still possible

In Yankton, ICWA director Raymond Cournoyer said it will take more than just money to make tribally run foster care programs work. It takes a strong law-and-order code, he said. It takes a good tribal court system.

“Maybe I’ll get in trouble for saying this, but it’s going to be a tough process,” Cournoyer said. “You have to have everything in place. I don’t think it’s going to be an easy process. Still, I understand that most tribes want to do that.”

If they do want to proceed, Daugaard and Wieseler said the state is willing to help. The tribes still might be able to get federal dollars to pay for the reporting system to which Hardy referred, Wieseler said. And though state involvement with child protection and foster care on the reservations would end if tribes get direct IV-E dollars, state officials still are willing to work on training or to assist with determining eligibility, or on data collection, she said.

As to whether she thinks the tribes can succeed in fully running their own programs, Wieseler said, simply, “I don’t have a sense of that.”

But Scherich thinks they can. Sheehan does, too. It’s a belief that seems to be growing across Indian Country.

“I know what these children go through. I went through it,” Scherich said. “I think we can do better, and we will.”

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